alleged deportation of the Rohingya people - ICC

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ICC-RoC46(3)-01/18-1 09-04-2018 1/31 NM PT

Original: English

Date: 9 April 2018

PRESIDENT OF THE PRE-TRIAL DIVISION

Before:

Judge Antoine Kesia-Mbe Mindua

APPLICATION UNDER REGULATION 46(3)

Public Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute

Source:

Office of the Prosecutor

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Document to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Ms Fatou Bensouda, Prosecutor Mr James Stewart

Counsel for the Defence

Legal Representatives of the Victims

Legal Representatives of the Applicants

Unrepresented Victims

Unrepresented Applicants

The Office of Public Counsel for Victims Ms Paolina Massidda

The Office of Public Counsel for the Defence Mr Xavier-Jean Keita

States Representatives

Amicus Curiae

REGISTRY

Registrar Mr Herman von Hebel

Counsel Support Section

Victims and Witnesses Unit

Detention Section

Victims Participation and Reparations Other Section

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Introduction 1.

The Prosecution seeks a ruling on a question of jurisdiction: whether the Court may

exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh. 2.

Consistent and credible public reports reviewed by the Prosecution indicate that since

August 2017 more than 670,000 Rohingya, lawfully present in Myanmar, have been intentionally deported across the international border into Bangladesh. The UN High Commissioner for Human Rights has described the Rohingya crisis as “a textbook example of ethnic cleansing”,1 and according to the UN Special Envoy for human rights in Myanmar, it potentially bears the “hallmarks of a genocide”.2 The coercive acts relevant to the deportations occurred on the territory of a State which is not a party to the Rome Statute (Myanmar). However, the Prosecution considers that the Court may nonetheless exercise jurisdiction under article 12(2)(a) of the Statute because an essential legal element of the crime—crossing an international border—occurred on the territory of a State which is a party to the Rome Statute (Bangladesh).3 3.

Given these exceptional circumstances and the nature of this legal issue, the Prosecutor

has exercised her independent discretion under articles 19(3) and 42 to seek a ruling on the question from the Pre-Trial Chamber. This will assist in her further deliberations concerning any preliminary examination she may independently undertake, including in the event an ICC State Party decides to refer the matter to the Court under articles 13(a) and 14. Submissions 4.

The Prosecution seeks a ruling on the Court’s jurisdiction under article 12(2)(a)—

specifically, to verify that the Court has territorial jurisdiction when persons are deported from the territory of a State which is not a party to the Statute directly into the territory of a State which is a party to the Statute. As explained below, this is not an abstract question but a concrete one, affecting whether the Court may exercise jurisdiction under article 12(2)(a) to investigate and, if necessary, prosecute the alleged deportation of Rohingya from Myanmar to 1

High Commissioner for Human Rights, Opening Statement to the 36th session of the Human Rights Council, 11 September 2011; see also OHCHR, Brutal attacks on Rohingya meant to make their return almost impossible – UN human rights report, 11 October 2017, para. 10. 2 Report of the Special Rapporteur on the situation of human rights in Mya